Unequivocal But Wrong

at

00156066Attorney General Marie Whelan

YOU decide.

The Eight Amendment, which protects the life of the unborn, has been invoked by Enda Kenny to explain why his party could not support Clare Daly’s legislation to permit abortion in the case of fatal foetal abnormalities.

The advice given has not been formally published extracts were leaked in last Sunday’s Sunday Business Post.

The paper reported:

“The advice states that where babies are capable of being born alive, “it is quite clear that Article 40.3.3 is engaged”….The Attorney General’s view is unequivocal, and leaves no room for doubt that the legislation proposed by independent TD Clare Daly last week to allow abortion in cases of fatal foetal abnormality is in conflict with the Constitution. The advice notes that there is no consensus as to what is meant by the term “fatal foetal abnormality”. However, it says, in many cases there is a possibility that such foetuses would be born alive. This is the case with conditions such as Edwards Syndrome and anencephaly. Even though babies with these conditions will eventually die after a period which in some cases may be very short, the Attorney General advised that the constitutional protections of Article 40.3.3 apply.”

However.

On foot of this, Unemployed Lawyer writes:

When you look at the terms of the Bill (Protection of Life in Pregnancy (Fatal Foetal Abnormalities) Bill 2013) put forward by Ms Daly, this Bill (Section 1) actually defines ‘fatal foetal abnormality’ in such a way as to remove the concerns voiced by the Attorney General, so as to confine it to an abnormality ‘incompatible with life outside the womb’.

A foetus suffering from an abnormality ‘incompatible with life outside the womb’ cannot by definition be born alive. As such, irrespective of how ‘fatal foetal abnormality’ is defined in ordinary life, the way in which it is defined in the Bill appears to deal with the concerns expressed by the A-G.

Was the Attorney General  made aware, when providing this advice, of the definition of ‘fatal foetal abnormality’ in Section 1 of Ms Daly’s Bill, as this does not appear clear from the extracts from the advice apparently provided by her – even though this advice was described as having been provided ‘last week’?

And also – was her sole objection to fatal foetal abnormality legislation – as appears from the SBP article (extract above), which of course may not reflect accurately the Opinion as a whole – based on the possibility that it might apply to some foetuses capable of surviving outside the womb. Perhaps your esteemed caffeinated legal friend might advise…

Previously: Was It Really Unconstitutional?

(Laura Hutton/Photocall Ireland)

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43 thoughts on “Unequivocal But Wrong

  1. Al

    “Marie, Its Enda, its unconstitutional right?”

    “Well Taoiseach its not that clear cut”

    “Marie, ifs f*cking unconstitutional..right”

    “Yes Taoiseach”

  2. Soundings

    “A foetus suffering from an abnormality ‘incompatible with life outside the womb’ cannot by definition be born alive.”

    Death isn’t instantaneous though, it might take a minute at one extreme or a few days or weeks at the other. So, legally, isn’t the AG correct?

    We need a referendum on the 8th to deal with this and related issues.

    1. andyourpointiswhatexactly

      With Edwards, you have a chance of living for a few years, albeit a tiny chance (and those few years would be sh*t). Mostly they die in utero or are stillbirths, or die after a week or so. Actually, that’s not true…mostly they are aborted (in countries where it’s allowed).
      This really does need to be legislated for. To quote Gwen Stefani: this sh*t is bananas, B-A-N-A-N-A-S.

      1. Anon

        In the past the life expectancy of people with cystic fibrosis was extremely short, now people are living into their thirties.

        If you think abortion is the answer I don’t think you are asking the right questions.

    2. PaddyIrishMan

      Yes, the AG is correct. Another of the many insanities created by the 8th amendment.

      But when will we get a referendum? Not from this government and if PaddyPower is right and the next one is FG FF then they won’t touch it.

      1. Pablo

        The AG is indeed correct, notwithstanding the ridiculous suggestions that the Taoiseach told her what to advise or that “the Government should get another opinion/bring this to the Supreme Court because I don’t like the AG’s opinion”.

    1. andyourpointiswhatexactly

      So no-one has a right to an opinion once the AG has spoken? What she says is law? No, it isn’t.

      We’ve every right to question her opinion. If it stands up, so be it, but let people debate it.

    2. weezer

      Ah yes, unemployed- with no repercussions from t’boss- pulls rank over highly-paid AG who’d like to keep said paid job.

  3. Jordofthejungle

    So it’s up to a grieving mother and her partner to challenge the legislation via an arduous trip to the High Court and the inevitable Supreme Court appeal whatever the outcome at a time when the lesser of two evils is to head quietly off to England for early delivery of a probably much wanted child stricken by fatal foetal abnormality and destined to die within moments of birth.

  4. shane conneely

    Almost every bill that a member of the opposition puts forward during private member’s business is deemed to be unconstitutional, the only difference is that this time people were actually watching.

    If they don’t want to put forward an argument against a proposal, they simply say that the advice they have received is that the bill is unconstitutional.

  5. ollie

    has anyone in govt stated when this advice was given? pat rabbitte was asked this direct question but refused to answer. I suspect that the advice wasn’t given for Daly’s bill but is historical.

      1. Actio Non Accrevit

        That’s a very interesting question, if in fact it was given earlier (perhaps before the Kearns decision referenced below) and outside the context of the Daly Bill, that would explain a lot.

        But the SBP article says ‘last week’.

  6. newsjustin

    Obviously the AG is correct and Unemployed Lawyer is wrong.

    “A foetus suffering from an abnormality ‘incompatible with life outside the womb’ cannot by definition be born alive” is simplistic wrongness. Incompatible with live outside the womb does not mean that the foetus is dead in the womb, that the child will be delivered dead, or that the child will die immediately.

    1. Actio Non Accrevit

      If you bothered reading the SBP article quoted above, you would see that it says the A-G’s advice was that abortion would breach Article 40.3.3 because some of the foetuses concerned might possibly live outside the womb, there is no reference to her discussing the question of life ‘within’ the womb. She may well have discussed this, but it’s not in the bit reported by the SBP, which they see as the core of her opinion. That’s the point that’s being made.

      Article 40.3.3 and the right to life of a foetus ‘within’ the womb with no possibility of life outside it were considered by Kearns J in the recent decision regarding withdrawal of life support to a pregnant woman, discussed elsewhere in the comments. He regarded the fact that a foetus could not survive outside the womb as relevant in allowing the withdrawal of that support.

  7. EmployedLawyer

    Perhaps Unemployed Lawyer should read the following:

    In Re Ward of Court
    Roche v. Roche
    PP v. HSE

    They would then learn that the protection of life applies both within the womb and outside of the womb. They would also learn that the Supreme Court has determined that active interference to bring about death is unlawful. They would then, perhaps, realise, that the Bill was indeed unconstitutional.

    1. Actio Non Accrevit

      Funny you don’t mention the recent decision of Kearns J here (I think it might have been mentioned on anotehr Broadsheet post) http://www.independent.ie/irish-news/courts/doctors-told-they-can-withdraw-life-support-for-clinically-dead-pregnant-woman-30863340.html

      If the right to life while in the womb (even if no possibility of survival thereafter) were as absolute as you say, there would have been a different result in this case… you might need to consider updating your legal knowledge.

  8. Steve

    It doesn’t matter a shite whether or not the AG’s advice was current, informed or accurate. It’s is not the Dail’s job to decide on constitutionality – that’s for the President and the Supreme Court. If there was a question over it it could and would have been referred and the Court would make a ruling on it. This was just Enda and his lackeys being cowards.

    As for not questioning the AG – AG’s have made mistakes before – or does nobody remember Harry Whelehan?

  9. AnotherUnemployedLawyer

    NewsJustin et al are quite correct. Not withstanding the point raised by EmployedLawyer (of whom I am quite jealous) the relevant consideration is life during pregnancy, not life immediately after birth. Even in the tragic case of Edwards’ Syndrome the foetus is alive and therefore can avail of the protection afforded by the Constitution. The AG is not so easily swayed in her advice that she will tell the Taoiseach what he wants to hear. The only way to resolve this is a good old fashioned referendum. The repeal of the 8th would only be a start, though. In my (probably best ignored) opinion, it should be replaced with a provision stating clearly “the provision of the termination of pregnancy shall be regulated in accordance with law.” That way abortion can be what God intended it to be – a political football to be kicked around every election cycle.

    1. Actio Non Accrevit

      The relevant consideration is life during pregnancy, not life immediately after birth

      Well it isn’t really, not according to the SBP piece, the extract from the A-G’s advice quoted specifically focuses on the question of whether or not there is a remote chance the foetus would survive after birth.

      And even speaking in general terms, rather than focusing on the A-G’s advice, it’s clear that life before birth, in cases where there is no chance of the baby being born alive, does not carry the same weight; note my comments on the Kearns decision above.

      It is of course quite possible that the SBP extract may not reflect the A-G’s advice in its entirety, but all we have to rely on is what they’ve quoted as being the key portion.

      Where did anyone say the A-G was tailoring her advice to tell the government what it wanted to hear? It’s irritating to see discussion on a serious issue tagged as an ad hominem attack rather than considered on its merits.

  10. Kieran NYC

    I think if someone puts themselves forward as being educated and properly qualified in an area such as this, they don’t also then get to hide behind anonymity. Otherwise we’re in the realm of ‘My mate’s mate says that if you post ‘No Contract No Consent’ on your door, then your house is its own sovereign country’ Chinese whisper/Zuppy International nonsense.

    Apart from Legal Coffee Drinker. She’s always awesome.

    1. Actio Non Accrevit

      Really? Isn’t the issue whether or not the point made by the person is correct, rather than their status. Too much deference in this country. Constitutional law is not THAT inaccessible; nor should it be, as the Constitution states, it belongs to the People (capital ‘p’). Most adults of average intelligence are capable of reading a book on Constitutional Law and coming to an opinion; it’s not rocket science.

      And your reasoning is inconsistent, anyway. Why should Legal Coffee Drinker be treated more favourably than Unemployed Lawyer?

  11. Atlas

    What’s with Broadsheet quoting experts in their respective fields, then tagging on the worthless opinion of some (often anonymous) randomer rubbishing said expert at the end? It’s become a lot more common lately – Unemployed Lawyer, Judith Goldberger, DelGirl…

    1. Actio Non Accrevit

      It’s called getting people to think for themselves.

      We’ve been deferring to experts in this country for years. You think it’s working?

  12. More_Bermuda_Than_Berlin

    This is the same AG who gave two opposing legal opinions on the abolition of upward-only rents in the commercial sector.

    Before the General Election, with Labour in Opposition, she said these rental agreements could be changed. And Labour candidates proclaimed they’d change them as soon as they got in.

    Fast forward to Labour in Government, and herself now said the legal situation was that upward-only rents couldn’t be changed.

    Maybe she’ll give another answer to this question after the next General Election, when Labour are back in Opposition.

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